Ebay, Trolls, Orcs, and Patent Law

The transcript of the Ebay vs. MercExchange oral arguments in front of the Supreme Court contain this entertaining passage on the whole “patent troll” issue:

Mr. Phillips: … if you’re a nonperforming entitly, that you don’t get a license, or even if you’re a troll, as that terms get bandied about, that you’re never entitled to a — to an injunction.

Justice Kennedy: Well, is — is the troll the scary thing under the bridge, or is it a fishing technique? I — I want –

(Laughter.)

Justice Kennedy: I mean, is that what the troll is?

Mr. Phillips: Yes, I believe that’s the — I think that’s what — what is is, although you — maybe we should think of it more as Orks [sic.], now that we have a new generation, but at this point troll is the word that gets — that gets used.

Ah, the controversy rolls on!

Somewhat more seriously, the WSJ’s Holman Jenkins had a good column on the subject in yesterday’s paper:

[In the Ebay case and the Metabolite case] the patents at issue are fishy and liable to be invalidated at some point in other legal proceedings. That gave the plaintiffs an unusual incentive to go for broke, seeking an injunction to shut down the defendant’s business to maximize immediate settlement leverage.

…If the Supreme Court uses the invitations presented by eBay and Metabolite to tweak the system back in a more serviceable direction, Congress could chuck the idea of legislating, always an invitation to make matters worse. Members could get back to dealing with graver threats to a lively, innovative economy.